United States District Court, E.D. Arkansas, Western Division
Kristine G. Baker United States District Judge.
the Court is a motion to quash and for protective order filed
by non-party witness Senator Jason Rapert (Dkt. No. 74).
Plaintiffs Anne Orsi, Eugene Levy, Gale Stewart, Teresa
Grider, the Arkansas Society of Freethinkers, American
Humanist Association, and the Freedom from Religion
Foundation (the “Orsi Plaintiffs”) filed
a response in opposition to the motion (Dkt. No. 75). The
Satanic Temple, Lucien Greaves, and Erika Robbins (the
“Satanic Temple Intervenors”) have also filed a
response in opposition to the motion (Dkt. No. 76).
State Senator Rapert informs the Court that his deposition
has been subpoenaed for Thursday, September 12, 2019, at 9:30
a.m. (Dkt. No. 74, at 1). On August 2, 2019, plaintiffs Donna
Cave, Judith Lansky, Pat Piazza, and Susan Russell (the
“Cave Plaintiffs”) served a subpoena for
his deposition but did not request video or documents with
the deposition (Dkt. No. 74-1). On August 14, 2019, the
Orsi Plaintiffs caused to issue a deposition
subpoena and subpoena duces tecum commanding the
videotaped testimony of Arkansas State Senator Rapert (Dkt.
No. 74-2). Arkansas State Senator Rapert represents that he
was served with the subpoena on August 20, 2019 (Dkt. No. 74,
moves to “(1) quash the subpoena commanding Senator
Rapert's attendance at a videotaped deposition noticed
for 9:30 a.m. September 12, 2019, and (2) enter a protective
order limiting the possession and use of any subsequent
videotaped deposition to his personal attorneys and counsel
of record in this matter only.” (Id.).
Court attempted to convene a telephone hearing among counsel
on September 11, 2019, with respect to this matter to discuss
the status of the matter with all counsel (See Court's
Exhibit No. 1, at 3). Although lawyers for the Cave
Plaintiffs, the Orsi Plaintiffs, the Satanic Temple
Intervenors, and Arkansas State Senator Jason Rapert agreed
to make themselves available for such a hearing
(Id., at 4-5, 7-8, 13), counsel for Mr. Thurston
stated that there were prior engagements during that time and
“request[ed] that the Court not hold a conference,
” on that date (Id., at 10). Counsel for Mr.
Thurston represented that they would “work to reshuffle
. . . prior commitments” if ordered to do so by the
Court has reviewed controlling and persuasive authorities,
including but not limited to Jones v. William Jefferson
Clinton, et al., Case No. LR-C-94-290 (Dkt. No. 166),
and United States v. McDougal, 940 F.Supp. 224 (E.D.
Ark.), aff'd 103 F.3d 651 (8th Cir. 1996). For
good cause shown, the Court orders as follows:
Arkansas State Senator Rapert's deposition will proceed
as subpoenaed by the Cave Plaintiffs and
That deposition may be videotaped in accordance with the
Orsi Plaintiffs' subpoena;
Immediately upon the conclusion of Arkansas State Senator
Rapert's deposition the original video recording shall be
labeled, dated, and initialed by the individual responsible
for operating the recording equipment and handed to counsel
for the Orsi Plaintiffs. Counsel for the
Orsi Plaintiffs shall be responsible for maintaining
the confidentiality of the video recording of Arkansas State
Senator Rapert's deposition pursuant to this Order.
copies shall be made of the video recording of Arkansas State
Senator Rapert's deposition except as provided by Order
of the Court after reasonable notice to all parties,
including counsel for Arkansas State Senator Rapert. This
provision includes but is not limited to no copies of the
video recording being made or distributed to any other
counsel, parties, or third-parties in this litigation except
as provided by Order of the Court.
This Order grants a temporary protective order, consistent
with its terms. The Court has under advisement Arkansas State
Senator Rapert's motion (Dkt. No. 74). The disposition of
the video recording of Arkansas State Senator Rapert's
deposition shall remain subject to further orders of this
Court, and this Order is without prejudice to Arkansas State
Senator Rapert's right to petition this Court for further
protection. The parties ...